Underdog Productions (PTY) LTD
Website Terms & Conditions
THESE TERMS AND CONDITIONS ARE BINDING AND ENFORCEABLE AGAINST ALL PERSONS THAT ACCESS THE UNDERDOG WEBSITE OR ANY PART THEREOF (UNDERDOG WEBSITE) IN TERMS OF SECTION 11(3) OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS (ECT) ACT 25 OF 2002. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS YOU MUST LEAVE THE UNDERDOG WEBSITE IMMEDIATELY, AS FURTHER USE WILL AUTOMATICALLY BIND YOU TO THESE TERMS AND CONDITIONS.
DEFINITIONS AND INTERPRETATION
a) “Underdog” means Underdog Productions (Pty) Ltd, a proprietary limited company.
b) “Underdog website” means the Underdog Productions (Pty) Ltd website located at www.underdog.co.za and includes any part or element thereof;
c) “User” means any person who enters or uses the Underdog website, notwithstanding the fact that such a person only visited the home page of the Underdog website;
d) References herein to the singular include the plural and vice versa; and
e) Notwithstanding the fact that hyperlinks in these terms and conditions to copyright notices and legislation should be deemed part of these terms and conditions in terms of section 11 of the ECT Act, the fact that some or all of the hyperlinks may be non-operational, shall not play a role in determination of the validity and interpretation of these terms and conditions.
Underdog Productions is a specialist cross-media content company which produces television programming, develops and designs interactive and web content (including custom software code), and creates print design work for its clients and a broader global audience. It frequently exploits its intellectual property in multiple platforms.
2. ALLOWED USE AND LICENSE
- 2.1 Underdog licenses the User to view, download and print the content of the Underdog website, provided that such content is used for personal, educational and/or non-commercial purposes only;
- 2.2 Content from the Underdog website shall not be used or exploited by Users for any commercial and non-private purposes without the prior written consent of Underdog;
- 2.3 Users may only access and use the Underdog website for legal purposes;
- 2.4 The caching of the Underdog website shall only be allowed if:
- 2.4.1 The purpose of the caching is to make the onward transmission of the content from the Underdog website more efficient;
- 2.4.2 The cached content is not modified in any manner whatsoever;
- 2.4.3 The cached content is updated at least every 12 (twelve) hours; and
- 2.4.4 The cached content is removed or updated when so required by Underdog.
- 2.5 If any User uses content from the Underdog website in breach of the provisions detailed herein:
- 2.5.1 Underdog reserves the right to claim damages from the User;
- 2.5.2 Underdog reserves the right to institute criminal proceedings against the User; and
- 2.5.3 Underdog shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of such content by the User or any third party who obtained any content from the User.
- 2.6 Hyperlinks to the Underdog website from any other source shall be directed at the home page of the Underdog website. Underdog shall not be liable, in any manner whatsoever, for any damage, loss or liability that resulted from the use of content from the Underdog website, if such content was accessed through a hyperlink not directed at the home page of the Underdog website. Persons that wish to link to content beyond the home page of the Underdog website shall do so at their own risk and indemnify Underdog against any loss, liability or damage that may result from the use of content from the Underdog website, if such content was accessed through a hyperlink not directed at the home page of the Underdog website;
- 2.7 No person may frame the Underdog website, in any manner whatsoever, without the prior written consent of Underdog;
- 2.8 Apart from bona-fide search engine operators, no person may use or attempt to use any technology or applications (including web crawlers or web spiders) to search or copy content from the Underdog website for any purposes, without the prior written consent of Underdog; and
- 2.9 All licenses and/or permissions granted in terms of this clause 2 are provided on a non-exclusive and non-transferable basis and may be terminated or cancelled by Underdog at any time without giving reasons therefore.
3. INTELLECTUAL PROPERTY RIGHTS AND DOMAIN NAME USE
All intellectual property on the Underdog website, including but not limited to content, trademarks (“Underdog Productions” and the Upside Down Dog logo are Registered Trademarks in South Africa), domain names, design elements, software, databases, text, graphics, icons and hyperlinks are the property of or licensed to Underdog and as such, are protected from infringement by domestic and international legislation and treaties. Subject to the rights licensed to the User in clause 2, all other rights to intellectual property on the Underdog website are expressly reserved.
4. SOFTWARE AND EQUIPMENT
It is the responsibility of the User to acquire and maintain, at his/her own expense, the computer hardware, software, lines and access accounts required to access the Internet and the Underdog website and/or download content from this website.
5. DISCLOSURES REQUIRED BY SECTION 43 OF THE ECT ACT
Access to some services, restricted content, video distributed on DVD or via download file, software and any other type of content downloads available from the Underdog website may be classified as “electronic transactions” in terms of the ECT Act, where an “electronic transaction” takes place for access of such content and therefore Users have the rights detailed in Chapter 7 of the ECT Act and Underdog has the duty to disclose the following information:
- 5.1 The full name and legal status of the website owner: Underdog Productions (Pty) Ltd;
- 5.2 Proprietary Limited Registration Number: 2002/005178/07;
- 5.3 VAT registration number: 4070139532;
- 5.4 Street address: 92 3rd Avenue, Melville, Johannesburg, 2092;
- 5.5 Postal address: P O Box 30, Melrose Arch, 2076;
- 5.6 Physical address for receipt of legal service: 92 3rd Avenue, Melville, Johannesburg, 2092;
5.7 Telephone Number: +27 (0) 11 483 8800;
- 5.8 CEO: Marc Schwinges
- 5.9 Main business: Underdog is a specialist cross-media content company which produces television programming, develops and designs interactive and web content (including custom software code), and creates print design work for its clients and a broader global audience. It frequently exploits its intellectual property in multiple platforms.
- 5.10 The website address of the Underdog website is: www.underdog.co.za;
- 5.11 The official e-mail address of the Underdog website is: firstname.lastname@example.org;
- 5.12 Membership of self-regulatory or accreditation bodies: Documentary Filmmakers Association and The Producers Alliance;
- 5.13 Codes of conduct to which the Underdog subscribes: None;
- 5.14 Alternative dispute resolution: Subject to urgent and/or interim relief, all disputes regarding:
- 5.14.1 Access to the Underdog website;
- 5.14.2 The inability to access the Underdog website;
- 5.14.3 The services and content available from the Underdog website; or
- 5.14.4 These terms and conditions shall be referred to arbitration in terms of the expedited rules of the Arbitration Foundation of South Africa and such arbitration proceedings shall be conducted in Johannesburg in English. The arbitration ruling shall be final and the unsuccessful party shall pay the costs of the successful party on a scale as between attorney and own client.
- 5.15 Description of goods and/or services: Underdog may at any time offer the following goods and/or services:
- 5.15.1 Services – while there are currently no “electronic transactions” bases services on offer, click here (link to “About Us” landing page) for more information on general services offered by Underdog; and
- 5.15.2 Products – while there are currently no “electronic transactions” bases products on offer, click here (link to “Our Work” landing page) for more information on our existing products range.
- 5.16 The costs associated with the access and use of the Underdog website are as follows:
- 5.16.1 General website content – free;
- 5.17 Users may lodge complaints concerning the Underdog website at email@example.com
Users hereby assign the copyright in such complaints to Underdog and understand that Underdog may use, disclose and publish such complaints and is furthermore under no legal duty to answer, resolve or address such complaints.
6. CHANGES AND AMENDMENTS
Underdog expressly reserves the right, in its sole and absolute discretion, to do any of the following, at any time without prior notice:
6.1 change these terms and conditions;
6.2 change the content and/or services available from the Underdog website;
6.3 discontinue any aspect of the Underdog website or service(s) available from the Underdog website; and/or
6.4 change the software and hardware required to access and use the Underdog Website.
- 7.1 Underdog shall take all reasonable steps to protect the personal information of Users and for the purpose of this clause, “personal information” shall be defined as detailed in the Promotion of Access to Information Act 2 of 2000 (PAIA);
- 7.2 Underdog may electronically collect, store and use, amongst other, the following personal information of Users:
- 7.2.1 Name and surname (where such users have subscribed to a database);
- 7.2.2 Contact details;
- 7.2.3 Industry Sector;
- 7.2.4 Non-personal browsing habits and click patterns;
- 7.2.5 E-mail address; and
- 7.2.6 IP address.
- 7.3 Underdog collects stores and uses the abovementioned information for the following purposes:
- 7.3.1 Communicate requested information to the User;
- 7.3.2 Newsletter database;
- 7.3.3 Possible future registration and / or authentication of Users; and
- 7.3.4 To compile non-personal statistical information about browsing habits, click-patterns and access to the Underdog website;
- 7.4 Information detailed above is collected either electronically by using cookies or is provided voluntarily by the User. Users may determine cookie use independently through their browser settings;
- 7.5 Underdog may collect, maintain, save, compile, share, disclose and sell any information collected from users, subject to the following provisions:
- 7.5.1 Underdog shall not disclose personal information from Users unless the User consents thereto;
- 7.5.2 Underdog shall disclose information without the User’s consent only through due legal process; and
- 7.5.3 Underdog may compile, use and share any information that does not relate to any specific individual; and
- 7.6 Underdog owns and retains all rights to non-personal statistical information collected and compiled by Underdog.
8. HYPERLINKS TO THIRD PARTY SITES
- 8.1 Underdog may provide hyperlinks to websites not controlled by Underdog (target sites) and such links do not imply any endorsement, agreement on or support for the content of such target sites; and
- 8.2 Underdog does not editorially control the content on such target sites and shall not be liable, in any manner whatsoever, for the access to, inability to access or content available on or through such target sites.
- 9.1 Underdog shall take all reasonable steps to secure the information provided by and collected from Users from unauthorised access and/or disclosure. However, Underdog does not make any warranties or representations that content shall be 100% safe and secure;
- 9.2 Underdog is under no legal duty to encrypt any content or communications from and to the Underdog website and is also under no legal duty to provide digital authentication of any page on the Underdog website;
- 9.3 Users may not deliver or attempt to deliver, whether on purpose or negligently, any damaging code, such as computer viruses, to the Underdog website or the server and computer network that support the Underdog website;
- 9.4 Notwithstanding criminal prosecution, any person who delivers any damaging code to the Underdog website, whether on purpose or negligently, shall, without any limitation, indemnify and hold Underdog harmless against any and all liability, damages and losses Underdog and its partners / affiliates may suffer as a result of such damaging code;
- 9.5 Users may not develop, distribute or use any device to breach or overcome the security measures of the Underdog website and Underdog reserves the right to claim damages from any and all persons concerned with a security failure or breach; and
- 9.6 Any User who commits any of the offences detailed in sections 85 to 88 of the ECT Act shall, notwithstanding criminal prosecution, be liable for all resulting liability, loss or damages suffered and/or incurred by Underdog and its partners / affiliates.
10. DISCLAIMER AND LIMITATION OF LIABILITY
- 10.1 Subject to the provisions of sections 43(5) and 43(6) of the ECT Act, if applicable, and as far as allowed by law, Underdog (including its owners, directors, employees, suppliers, Internet service providers, partners, affiliates and agents) shall not be liable for any damage, loss or liability of any nature incurred by whomever and resulting from:
- 10.1.1 Access to the Underdog website;
- 10.1.2 Access to websites linked to the Underdog website;
- 10.1.3 Inability to access the Underdog website;
- 10.1.4 Inability to access websites linked to the Underdog website;
- 10.1.5 Content available on the Underdog website;
- 10.1.6 Services available from the Underdog website;
- 10.1.7 Downloads and use of content from the Underdog website; or
- 10.1.8 Any other reason not directly related to Underdog’s gross negligence.
- 10.2 The Underdog website is supplied on an "as is" basis and has not been compiled to meet the User's individual requirements. It is the responsibility of the User to satisfy himself or herself, prior to entering into this agreement with Underdog, that the content available from and through the Underdog website meets the User's individual requirements and is compatible with the User's computer hardware and/or software;
- 10.3 Information, ideas and opinions expressed on the Underdog website should not be regarded as professional advice or the official opinion of Underdog and Users are encouraged to seek professional advice before taking any course of action related to the information, ideas or opinions expressed on the Underdog website;
- 10.4 Underdog does not make any warranties or representation that content and services available from the Underdog website will in all cases be true, correct or free from any errors. Underdog shall take all reasonable
steps to ensure the quality and accuracy of content available from the Underdog website and encourage Users to report incorrect and untrue information subject to the right of Underdog to rely on its free expression rights and determine, in its sole and absolute discretion, the contents of this website; and
10.5 Underdog does not make any warranties or representations that the Underdog website shall be available at all times. Users acknowledge that the Underdog website may be unavailable due to updates or other causes beyond the reasonable control of Underdog, including, but not limited to virus infection, unauthorised access, power failure or other “acts of God.”
11. REMOVAL AND CORRECTION OF CONTENT
Users are encouraged to report untrue, inaccurate, defamatory, illegal, infringing and/or harmful content available from the Underdog website to Underdog and Underdog undertakes to correct and/or remove such content or any part thereof if the person reporting such content provided reasonable grounds to prove the alleged nature of the content.
12. INTERCEPTION OF COMMUNICATIONS
- 12.1 Subject to the provisions of the Regulation of Interception of Communications (RIC) Act 70 of 2002, the User agrees to Underdog’s right to intercept, block, filter, read, delete, disclose and use all communications sent or posted by the User to the Underdog website, its staff and employees; and
- 12.2 The User agrees and acknowledges that the consent provided by the User in clause
- 12.3 satisfies the “writing” requirement as detailed in the ECT Act and the RIC Act.
13. ENTIRE AGREEMENT AND SEVERABILITY
- 13.1 These terms and conditions constitute the entire agreement between Underdog and the User and shall take precedence over any disclaimers and/or legal notices attached to any communications and/or postings received by Underdog from the User;
- 13.2 Any failure by Underdog to exercise or enforce any right or provision shall in no way constitute a waiver of such right or provision; and
- 13.3 In the event that any term or condition detailed herein is found unenforceable or invalid for any reason, such term(s) or condition(s) shall be severable from the remaining terms and conditions. The remaining terms and conditions shall remain enforceable and applicable.
14. AGREEMENT IN TERMS OF SECTION 21 OF THE ECT ACT
The User and Underdog agree that:
- 14.1 The User shall be bound to these terms and conditions and such agreement is concluded in Johannesburg (South Africa) at the time the User enters the Underdog website for the first time;
- 14.2 data messages (as defined in the ECT Act) addressed by the User to Underdog shall only be deemed to have been received if and when responded to;
- 14.3 data messages (as defined in the ECT Act) addressed to the User by Underdog shall be deemed to be received by the User as detailed in section 23(b) of the ECT Act;
- 14.4 data messages (as defined in the ECT Act) addressed by the User to Underdog shall be deemed to have been created and sent by the User from within the geographical boundaries of South Africa;
- 14.5 electronic signatures, encryption and/or authentication is not required for valid electronic communications between the User and Underdog; and
14.6 The User agrees and warrants that data messages that are sent to Underdog from a computer, IP address or mobile device normally used by or owned by the User, was sent and/or authorised by the User personally.
15. APPLICABLE AND GOVERNING LAW
While the Underdog website is currently physically hosted in the USA, it is controlled and operated from the Republic of South Africa, with content relevant to a South African business and therefore the South African law enforced by the South African courts governs the use or inability to use the Underdog website, its content, services and these terms and conditions.
16. LEGAL COSTS
Underdog shall not be liable for costs incurred by Users to obtain professional advice relating to these terms and conditions.